Golf Course Design: Safety and Land Fraud

Index

Key Concepts:

• Safety and Land Fraud
• Design team indifference to Safety
• How to Protect Yourself
• Purchasing property adjacent to a golf course

Minimum Safety Envelope:

• How to compute the Minimum Safety Envelope (MSE)
• Example of MSE for Straight Golf Hole, 400 yards (requires Adobe Acrobat)
• Example of MSE for Dogleg Right Golf Hole, 400 yards (requires Adobe Acrobat)

Revised: 2005

Safety and Land Fraud. (index) This site is designed to:

(1) provide safety information and assist homebuyers in avoiding a developer's land fraud and deceptive trade practices and 

(2) keep the risks of the golf course developer's business decisions where they belong: with the developer and the development team. 

The information in this site comes from the case of Dean vs. McStain (summarized below) where the homeowner recovered $700,000 from a developer for land fraud.  The Dean vs. McStain Trial Court Opinion, Court of Appeals Opinion and the final Settlement Agreement are attached. To the best of our knowledge, this is the lead case on these issues in the United States.

Design team indifference to Safety. (index) Design teams for master planned golf course communities (the developers, architects, planners and marketers) are indifferent to the risks their business decisions create for the homeowners in these developments. Further these teams take whatever steps are necessary to conceal the dangers of the specific property being sold and transfer the risk of those concealed dangers to the homebuyer.

How to Protect Yourself. (index) Homebuyers need to review two key areas before purchasing property adjacent to a golf course: (1) is property outside of the Minimum Safety Envelope (MSE) for the golf course and  (2) is the developer using any of the language developers typically employ to deceive homebuyers and strip homebuyers of the safe and quiet enjoyment of their home. 

Purchasing property adjacent to a golf course (index)

This site does not recommend purchasing property adjacent to a golf course:  bad property can turn into a nightmare and there are plenty of alternative home sites (on lakes, open space, parks and the like) that are not dangerous. 

However, if you expect full & safe use of your property and want to purchase property adjacent to a golf course, never purchase property if any of the following is true:

1. If any part of the property is within the MSE.
2. If the title documents or any other material furnished or available to you (or conveyed to you verbally) contain any language regarding an easement for the use of the golf course, risk of living on a golf course, assumption of risk, coming to the nuisance or the like.
3. If any comment is made by anyone about any golf balls that have come on to the property or may come on to the property in the future. 
4. If the developer does not warrant to you in writing that the property will not be subject to golf balls landing on, flying through or striking the property.

Minimum Safety Envelope (MSE) (index)

• Example of MSE for Straight Golf Hole, 400 yards
  
  
• Example of MSE for Dogleg Right Golf Hole, 400 yards

As developers of golf courses are well aware, it is impossible for a buyer to make an informed decision on the safety of property adjacent to a golf course by visual inspection.  The buyer assumes that the property will be safe for residential use at all times. The only way to tell if a specific property is safe is by the computation of the MSE off of the scaled plans of the golf course or scaled aerial photography.  Plans and or aerial photography are available through the developer or the planning and zoning office.  The first step is to ask the developer for their calculations of the MSE.  If they do not have a MSE calculation or will not provide it to you for the specific property you are interested in, you should look for property elsewhere.

The MSE is calculated from the line down which the golfers will hit the ball. This is called the line of play, apparent line of play, target line, centerline or design centerline. In this site, the term CL is used to denote the line down which the golfers will  hit the ball.  The MSE is calculated from the CL.

1. On an absolutely straight golf hole, there is one CL which runs directly from the center of the main tee to the center of the green.  A typical golf hole will have 4 tees: ladies tee (closest to the green), seniors tee, men's tee and pro tee (or designations to that effect).  The men's tee is used as the main tee for all these calculations.  The MSE is calculated from this one CL.
   
2. On a dogleg of any kind (right or left) there will be two CLs (a right and left CL) unless the second CL is completely blocked by an obstruction (such as a row of trees) at the tee.  The two CLs are computed as follows.  One CL goes from the center of the main tee to the center of the landing area (the landing area is the most open spot 250-275 yards from the center of the main tee). From there that CL is continued on to the center of the green. The second CL goes from the center of the main tee directly to the center of the green (it cuts across the dogleg).  The MSE for the right side is calculated from the right most CL. The MSE for the left side is calculated from the left most CL.  By adding the MSE for both sides you get the MSE for the golf hole.
   
3. You compute the MSE as follows: starting at the center of the tee, 150' in any direction, expanding to 210' in any direction from the CL at 450' out from the center of the tee to the green. The MSE on the right side should be further increased to 260'  at 600' feet from the tee. The right side increase is based on a study done in the Dean vs. McStain lawsuit and agrees with a study done by Robert Muir Graves and produced in the lawsuit. The Urban Land Institute's 1994 publication on golf course design uses 210' from the CL on both the right and left side. The Hale Irwin instructions to the developers in the Dean vs. McStain lawsuit were that the developer shall provide 200' on each side of the centerline. The USGA undertook a 10,000 ball pattern study which serves as the basis for the USGA course rating guide. However useful this study may be for computing the MSE, the USGA will not release either the course rating guide or the underlying ball pattern study to the public.

Case Summary of Dean vs. McStain (index)

• In the case of Dean vs. McStain, the Deans were sold a new home, represented to be safe for residential use by the developers of the master planned golf course community. The developers withheld from the Deans the fact that the entire property was within the MSE described on this site. The developers knew at the time of the concealment that the property would not be safe for residential use. 
• Subsequent to the Deans moving into the property, the property became extremely dangerous and could not be used for residential use (thousands of balls per year striking the property with enough force to kill an adult). The developers refused to either fix the golf course by moving the golf course MSE off the Deans' property (force the CL on the course a minimum of 210' away from the Deans' property boundary) or to purchase the house from the Deans. 
• The Deans sued McStain, Beauprez Piszek, Robert Beauprez (along with others) for Negligence, Negligent Misrepresentation, Fraud and Deceptive Trade Practices under the Colorado Consumer Protection Act.  Because of pretrial and trial errors, all the claims against Beauprez were dismissed from the suit, and all the claims against Beauprez Piszek except for Negligence were dismissed from the suit.   All of these errors were reversed on appeal and the claims reinstated against Beauprez and Beauprez Piszek (see below).
• The jury found for the Deans on all counts, The jury found against McStain (one of the developers) for Negligence, Negligent Misrepresentation, Fraud and Deceptive Trade Practices. The jury found against Beauprez Piszek for Negligence. The trial judge wrote a scathing post trial opinion concerning the developers conduct, and the Colorado Court of Appeals Opinion affirmed the jury verdict in it's entirety and reinstated all the claims against Beauprez and Beauprez Piszek  for Negligence, Negligent Misrepresentation, Fraud and Deceptive Trade Practices and set those issues for retrial.  At this point, McStain, Beauprez and  Beauprez Piszek paid the Deans $700,000 (see settlement agreement). This is in addition to the sale of the house by the Deans to a third party. The house was sold at a substantial discount, with full written disclosure to the buyers, after some mitigation was undertaken by the course operator.